THE COUP OF 2012: Encroachment upon Basic Freedoms, Militarized Police State in America
By Frank Morales
Global Research, June 14, 2012
Back in 1992 the Pentagon’s Joint Chiefs of Staff held a “Strategy Essay Competition.”
The winner was a National War College student paper entitled, “The Origins of the American Military Coup of 2012.” Authored by Colonel Charles J. Dunlap, Jr. the paper is a well documented, “darkly imagined excursion into the future.” The ostensibly fictional work is written from the perspective of an imprisoned senior military officer about to be executed for opposing the military takeover of America, a coup accomplished through “legal” means. The essay makes the point that the coup was “the outgrowth of trends visible as far back as 1992,” including “the massive diversion of military forces to civilian uses,” particularly law enforcement.
Dunlap cites what he considered a dangerous precedent, the 1981 Military Cooperation with Civilian Law Enforcement Agencies Act, an act that sanctioned US military engagement with law enforcement in domestic “support operations,” including “civil disturbance” operations. The act codified the lawful status and use of military “assets” in domestic police work.
Encroachment upon Basic Freedoms
The statute contains a sweeping worldwide indefinite detention provision. While President Obama issued a signing statement saying he had “serious reservations” about the provisions, the statement only applies to how his administration (“you can trust me”) would use the authorities granted by the NDAA, and would not affect how the law is interpreted by subsequent administrations. The White House had threatened to veto an earlier version of the NDAA, but reversed course (of course) shortly before Congress voted on the final bill, which the President signed on the 31st of December 2011, a day that will go down in infamy.
Under the legislation, suspects can be held without trial “until the end of hostilities.” They will have the right to appear once a year before a committee that will decide if the detention will continue. A spokesperson for Human Rights Watch implied that the signing of such a bill by a President would have once been unthinkable, noting that “the paradigm of the war on terror has advanced so far in people’s minds that this has to appear more normal than it actually is.” Further, “it wasn’t asked for by any of the agencies on the frontlines in the fight against terrorism in the United States. It breaks with over 200 years of tradition in America against using the military in domestic affairs.”
In fact, the heads of several “security agencies,” including the FBI, CIA, the director of national intelligence and the attorney general objected to the legislation. Even some within the Pentagon itself said they were against the bill. No matter, and no matter the intention inherent in lip service opposition, the corporate elite who drive the disastrous and inhumane polices of this country see it otherwise, and they, not the generals or anyone else, call the shots!
And they’ve been at this for some time. A persistent and on-gong counter-insurgency directed against the American people, the detention provisions embedded in the NDAA are about more than “social control.” It amounts to a direct attack on the person, an “unreasonable search and seizure” in the cause of maintaining the shaky capitalist ship of state; suppressing popular resistance, dissent and protest, movements of peace and justice, recast as “civil disorder,” “civil disturbance” and “domestic terror.”
Current U.S. military preparations for suppressing “civil disturbance” and “domestic terrorism” including the training of National Guard troops, local police and the authorization of massive surveillance, are part of a long history of American “internal security” measures dating back to the first American Revolution. Generally, these measures have sought to thwart the aims of social justice movements, embodying the concept, promulgated by elite sectors intent on maintaining their grip on the levers of state; that within the civilian body politic lurks an enemy that one day the military might have to fight; or at least be ordered to fight. (See: Army Surveillance in America, 1775-1980, Joan M. Jensen, Yale University Press, 1991)
Thus, in reaction to a period of social upsurge flush with movements of liberation, justice and peace, and the mounting of powerful campaigns which threatened the status quo and elite control, the US military’s stand alone apparatus for conducting “civil disturbance suppression” operations, including detention, was born, immediately on the heels of the assassination of Dr. Martin Luther King Jr. in April 1968.
The Garden Plot Operation
Currently, the Garden Plot operation is centered at the Pentagon’s Northern Command (USNORTHCOM). “Stood up” in 2002, (though In the works prior to 9/11), NORTHCOM, America’s “domestic military command,” is tasked with various “counter-terror,” “homeland defense” and “homeland security” activities, including “civil disturbance suppression” operations, and “assisting law enforcement” within Canada, the United States and Mexico. http://www.northcom.mil/
Under NORTHCOM, Operation Garden Plot functions, with the US Army as “executive agent,” as “ConPlan 2502.” In two parts, the “con plan” is officially listed as: United States Northern Command, Concept Plan (CONPLAN) 3501 (formerly 2501), Defense Support of Civil Authorities (DSCA), dated 11 April 2006; and the United States Northern Command, Concept Plan 3502 (formerly 2502), Defense Support of Civil Authorities for Civil Disturbance Operations (CDO), 23 January 2007.
As noted above, the latest development in the Pentagon’s evolving mission of suppressing, at the behest of it’s corporate “civilian” overseers, a detention provision, is buried within the massive National Defense Authorization Act (NDAA) of 2012 signed by President Obama in the fog (grog) of this past New Years Eve.
And yet, behind all the sophistry, lies and manipulation, the brutal truth is obvious: The corporate elite that directs things has seen fit to unleash it’s military on it’s own people in a desperate attempt to suppress the democratic (read: protest) rights of it’s citizenry, us! Why? Simple: the paranoia of the thief, the well founded fear that knows that forced deprivation and scarcities, violence at home and abroad, rooted in greed, has run it’s course in America. And they are right! And so, it makes ominous sense that we are confronted with the horrific machinations of forced detention for those who resist a “new world order” come home in a “homeland” which opportunistically collapses all distinction between dissent and terrorism, police and military, right and wrong, obfuscating the truth of who the real terrorists are!
When Congress passed the 2012 National Defense Authorization Act (NDAA), it included provisions that authorized U.S. armed forces to detain persons who are captured in the conflict with al-Qaeda, the Taliban, or “associated forces.” Section 1021 entitled “AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE” allows for the President (whoever that may be) “to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force … to detain covered persons …pending disposition under the law of war.”
“A covered person,” according to the edict’s malleable lingo, is “any person … who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks …” or, who “was a part of or substantially supported al-Qaeda, the Taliban,” or “associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”
Accordingly, “the disposition of a person under the law of war” will include “detention under the law of war without trial until the end of the hostilities …” Now, by stating that “nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force,” and that “nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States,” it would appear that the law exempts American citizens from the threat of detention. Correct?
Detention is a booming industry
There has been some confusion over what Section 1021 actually means, and that in and of itself is cause for concern. Congressional spokespeople have stated that the provisions of NDAA 2012 / Sec 1021 do not provide any “new authority” to detain U.S. citizens or others who may be captured in the United States. Obama waffled likewise in the lead up to his signing the provision. Sen. Carl Levin, chair of the Senate Armed Services Committee, ho-hummed and said that, “we are simply codifying existing law.” But that was an evasion, since existing law, like it or not, regarding the detention of U.S. persons in the “war on terror” is indeterminate in important respects. And “indeterminate” is not good enough!
A recent report from the Congressional Research Service fleshes out the law of detention as set forth in Section 1021, identifying what is known to be true as well as what is unsettled and unresolved. It is perfectly clear, for example, that a U.S. citizen who fights alongside “enemy forces” against the United States on a foreign battlefield could be lawfully detained. This was affirmed by the U.S. Supreme Court in the case Hamdi v. Rumsfeld.
On the other hand, the CRS report explains, “the President’s legal authority to militarily detain terrorist suspects apprehended in the United States has not been definitively settled.” Nor has Congress helped to settle it. “This bill does not endorse either side’s interpretation,” said Sen. Dianne Feinstein, “but leaves it to the courts to decide.”
So, if a detention of a U.S. person does occur, the CRS said, “it will be up to a court to determine Congress’s intent when it enacted the AUMF [the 2001 Authorization to Use Military Force], or alternatively, to decide whether the law as it was subsequently developed by the courts and executive branch sufficiently established that authority for such detention already exists.”
Up to now, “lower courts that have addressed questions the Supreme Court left unanswered have not achieved a consensus on the extent to which Congress has authorized the detention without trial of U.S. persons as ‘enemy combatants,’ and Congress has not so far clarified its intent.”
Well, it is certainly reassuring that a New York court has sought to clarify it’s intent on the matter. On May 16, 2012 a newly appointed federal district judge, Katherine Forrest of the Southern District of New York, issued a ruling, hailed by many, which preliminarily enjoins (prohibits) enforcement of the indefinite detention provisions (Sec 1021) of the NDAA 2012.
The “temporary restraining order” came as a result of a lawsuit brought by seven dissident plaintiffs — including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Birgitta Jonsdottir — alleging that the NDAA violated both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution. “The government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021,” Judge Forrest said in her ruling. “Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.”
Where it will go from here is anybodies guess. Judge Forrest’s ruling was not permanent. A day after the ruling, the Wall Street Journal, for it’s part, offered it’s sour grapes, pontificating that the ruling “will be overturned on appeal,” while “its reasoning needs to be deconstructed so it doesn’t do more harm in the meantime.” A week later, on the 25th, federal prosecutors from Obama’s Department of Justice, calling Judge Forrest’s ruling “extraordinary,” suggested that she lift the injunction, claiming further that her ruling only effects those plaintiffs named and not other potential or future targets of the draconian legislation.
Well, a few days ago on June 6th the upright Judge Forrest responded with an 8 page, “memorandum and opinion” in which she sought to “eliminate any doubt as to the May 16 order’s scope.” (New York Times, “Detention Provision is Blocked” 6/7/12). And as to whom and for whom her original order was intended: “The May 16th order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court – or by Congress.” That’s clear enough!
So, as it stands now now, although Judge Forrest’s decision may temporarily protect Americans from provision 1021, it remains to be seen what the higher courts do should Obama’s people appeal. And unfortunately, Judge Forrest’s ruling, as praiseworthy as it is, does nothing to spare both foreign reporters and civilians from a life of imprisonment, let alone the more than 6 billion citizens of foreign nations who can still be handcuffed and hauled away to a US military prison without ever being brought to trial.
So, bottom line, given the indeterminate nature of a law that would snatch us up off the streets, throw away the key, and grant us little or no access to a trial let alone legal counsel of choice not vetted by the Pentagon, we should have no illusions that we are well along the slippery indeterminate slope to a full blown militarized police state; the complete identification, coordination and consolidation of the police and military function in America in the interests of an elite who regard us as the enemy, maybe even their property! Maybe even as targets for assassination!
Naked violation of the 4th and 5th Amendments to the US Constitution
The Justice Department’s Office of Legal Counsel rationalized such a move in “a lengthy memo justifying that extraordinary step, asserting that while the Fifth Amendment’s guarantee of due process applied, it could be satisfied by internal deliberations in the executive branch.” (New York Times, “Secret U.S. Memo Made Legal Case to Kill a Citizen,” 10/8/11) Accordingly, after a dubious period of “internal deliberations,” Mr. Obama gave his approval, and the cleric Anwar al-Awlak was assassinated in September 2011, along with an associate Samir Khan, an American citizen who was not on the target list but happened to be traveling with Mr. al-Awlak. Apparently, campaign rhetoric and public demeanor to the contrary, when asked what surprised him most about Mr. Obama, Mr. Donilon, the national security adviser, answered immediately: “He’s a president who is quite comfortable with the use of force on behalf of the United States.”
The Posse Comitatus Act
The 1878 Act, 18 USC § 1385 – USE OF ARMY AND AIR FORCE AS POSSE COMITATUS, more popularly known as The Posse Comitatus Act, reads as follows:
As noted, the 1981 Military Cooperation with Law Enforcement law would seemingly violate the spirit if not the letter of this Act. Nonetheless, like a slowly boiling pot relentlessly eating away at our freedom of movement, assembly, association and expression, the utilization of military assets, under cover of law enforcement to suppress our democratic rights has proceeded steadily by design, virtually un-noticed.
Historical milestones: eating away at our freedom of movement, assembly, association and expression
The Pentagon can invade, occupy and destroy at will, pre-emptively (with little or no reason), anyone, anywhere in the world
The modern “military tribunal” structure, which is a major piece of the detention/repression apparatus, came into formal existence as a consequence of the 2002 Department of Defense Military Commission Order No.1, issued on March 21, 2002 by former president (war criminal) George W. Bush.
The entire military commission/tribunal structure is a work in progress, or more precisely, a dynamic and strategic power play on the part of the rulers set in motion following 9/11; a “might makes right” gambit undertaken by the militarist directors in the smoke of 9/11. Like the so-called Patriot Act, it was forced down the throats of a submissive, clueless public, sufficiently softened by means of prime time terror, fear and panic. Taking two steps forward and one step back, the militarists act first and then rationalize (or more precisely have their employees in the Congress) baptize the move after the fact. Where do presidents like Dubya, and now Obama get the authority to issue such blanket, unilateral decrees, totalitarian “executive orders,” such as Obama’s “National Defense Preparedness Order” of this year, which would force us to work for the Pentagon? The answer: No where! They have no authority! Particularly to set up parallel systems of jurisprudence as a means of by-passing Constitutional protections. In historical fact, this approach has a parallel in earlier maneuvers of another former “executive,” Adolph Hitler. (see Hitler’s Justice: The Courts of the Third Reich, Ingo Muller, Harvard, 1991)
Concurrent with the round-up of over a thousand people following the September 11 attack, many of whom are still being held, many in solitary confinement, with no charges being filed, President Bush signed in November 2001 an order, establishing military “tribunals” for those non-citizens, accused, anywhere, of “terrorist related crimes.” And now, with the NDAA, citizens might soon face the same fate. Just imagine some smug and starchy government lawyer arguing that “the right to equal protection,” a fundamental principle of both U.S. and international law, demands that Americans be detained too!
At the time (2001), the National Legal Aid & Defender Association stated that the Bush promulgated “military order” violated the constitutional separation of powers:
More recently, in October 2009, the U.S. Congress passed and Obama dutifully signed the Military Commissions Act of 2009 (2009 MCA), which remains in effect today, legalizing further, if you will, the naked power grab by the executive in behalf of the elite. Since then the “Office of Military Commissions” has been set up as a public relations/propaganda front for the dictatorship. It promises to “provide fair and transparent trials of those persons subject to trial by Military Commissions while protecting national security interests.” Kind of like Fox’s “fair and balanced” news reporting. http://www.mc.mil/
Finally, we should recall that the NDAA of past years, aside from providing the funding of vast sums for illegal and immoral wars, torture and assassination, has been the site of various embedded measures designed to further limit our democratic rights of free expression and assembly, which is the foundation of effective and meaningful dissent. One such measure dates back to 2007, to the then so-called John Warner NDAA, named after militarism’s best friend and sponsor of the iconic AUMF.
Public Law 109-364, or the “John Warner Defense Authorization Act of 2007” (H.R.5122), was signed by George Bush on October 17th, 2006, in a private Oval Office ceremony. It allowed the President to declare a “public emergency” and subsequently station troops anywhere in America, seizing control of state-based National Guard units without the consent of the governor or local authorities, in order to “suppress public disorder.” Well, fortunately, a massive protest ensued and the sections of the law that allowed for such were eventually repealed in the midst of which Senator Pat Leahy commented that, “we certainly do not need to make it easier for Presidents to declare martial law.” Preparing to order the military onto the streets of America, the presumption is that some form of martial law would be in evidence. Note that the term for putting an area under military law enforcement control is precise; the term is “martial law.”
The concept of martial rule, as distinct from martial law, is not written, and therefore is an eminently more workable arrangement for “law enforcement forces.” That’s because, as US Army Field Manual 19-15 points out, “martial rule is based on public necessity. Public necessity in this sense means public safety.” According to the manual (cited above), updated in 2005, U.S. state authorities “may take such action within their own jurisdictions.” And yet, “whether or not martial rule has been proclaimed, commanders must weigh each proposed action against the threat to public order and safety. If the need for martial rule arises, the military commander at the scene must so inform the Army Chief of Staff and await instructions. If martial rule is imposed, the civilian population must be informed of the restrictions and rules of conduct that the military can enforce.”
Now, respecting the power of free speech, the manual suggests that, “during a civil disturbance, it may be advisable to prevent people from assembling. Civil law can make it unlawful for people to meet to plan an act of violence, rioting, or civil disturbance. Prohibitions on assembly may forbid gatherings at any place and time.” And don’t forget, “making hostile or inflammatory speeches advocating the overthrow of the lawful government and threats against public officials, if it endangered public safety, could violate such law.”
Further, during civil disturbance operations, “authorities must be prepared to detain large numbers of people,” forcing them into existing, though expanded “detention facilities.” Cautioning that, “if there are more detainees than civil detention facilities can handle, civil authorities may ask the control forces to set up and operate temporary facilities.” Pending the approval of the Army Chief of Staff, the military can detain and jail citizens en masse. “The temporary facilities are set up on the nearest military installation or on suitable property under federal control.” These “temporary facilities” are “supervised and controlled by MP officers and NCOs trained and experienced in Army correctional operations. Guards and support personnel under direct supervision and control of MP officers and NCOs need not be trained or experienced in Army correctional operations. But they must be specifically instructed and closely supervised in the proper use of force.”
According to the Army, the detention facilities are situated near to the “disturbance area,” but far enough away “not to be endangered by riotous acts.” Given the large numbers of potential detainees, the logistics (holding, searching, processing areas) of such an undertaking, new construction of such facilities “may be needed to provide the segregation for ensuring effective control and administration.” It must be designed and “organized for a smooth flow of traffic,” while a medical “treatment area” would be utilized as a “separate holding area for injured detainees.” After a “detainee is logged in and searched,” “a file is initiated,” and a “case number” identifies the prisoner. In addition, “facility personnel also may use hospital ID tags. Using indelible ink, they write the case number and attach the tag to the detainees wrist. Different colors may be used to identify different offender classifications “
Finally, if and when it should occur, “release procedures must be coordinated with civil authorities and appropriate legal counsel.” If the “detainee” should produce a writ of habeas corpus issued by a state court, thereby demanding ones day in court, the Army will “respectfully reply that the prisoner is being held by authority of the United States.”
Meanwhile, the GAO has just issued a report to Congress entitled “DOD Should Reevaluate Requirements for the Selective Service System” which calls for an evaluation of Pentagon “manpower needs for the Selective Service System in light of current national security plans.” Such an evaluation would, the report notes, “better position Congress to make an informed decision about the necessity of the Selective Service System or any other alternatives that might substitute for it.”
Yes indeed, the water is boiling. Not to mix metaphors, but it’s time to jump out of the frying pan and hopefully not into the fire, which I take to mean that we must confront and deconstruct, in a non-violent way, the increasing potential for far more violence and suppression of our basic freedoms. The handing over of our resources, lives, fortune and reputation to a clique of thieves and murderers dressed up as presidents, congress people and corporate military executives and underlings is to foster our continued enslavement to the perpetrators of injustice and genocide, here and broad, inequality and greed, here and abroad, and signals the political suicide for our republic. We have got to act to stop the police state and reassert the values of community, justice and equality in the councils of governance. And to do so we must dis-empower the militarists.
One thing we can do right now is to initiate organizing campaigns in neighborhoods and communities across the country aimed at the passing of Posse Comitatus-like legislation on the local and state level, encouraging dialogue on the de-militarization of our communities, and raising the human right to be free of the violation inherent in all forms of militarism. By removing all aspects of militarism from domestic policing, lock, stock and barrel, we can expand the terrain of dissent and begin to reclaim our country back from the economic vultures and parasites and their violent mercenaries who are killing this country and the world. But first we must criminalize, like the Posse Comitatus Act does, all military involvement in law enforcement.
Communities must organize to de-militarize their police
Along with criminalizing the militarization of local police we must work to criminalize racial profiling on the part of the police, a practice (indoctrinated in soldiers) that provides naked justification for “stop and frisk” harassment and the murdering of young black men. Make killer cops liable for these murders, stripped of the “sovereign immunity” that is their 007 license to kill. Ditto for “stand your ground” or more-arms-for-the-white-right laws, which along with the high rates of gun ownership in certain demographic regions of the country, create the ominous potential for “deputized” armed posses, who along with state sponsored “defense forces” on a mission to presumably protect the “homeland” promise only more violence and repression. Disarm and expose them, expose the fraud of a hyped-up “law enforcement” establishment willing to break any laws to please the master, the financiers, the power brokers who manipulate them for gain, who are really only pawns in their game.
It is irrational and a violation of the civil and human rights of the citizenry to perpetuate the arming of militarized police trained to suppress constitutionally insured rights to free speech and assembly. They are supposed to defend the Constitution, not “detain” those who do! They are supposed to defend the civil rights of the people, not “partner” with the CIA and FBI and spy on activists and Muslim communities, entrapping their youth, victims of the racist charade called “the war on terror.” (Associated Press, “Post-9/11, NYPD targets ethnic communities, partners with CIA,” 8/24/11)
They are supposed to defend the right to protest, not brutalize those who do, peacefully, as in the most recent police crack-down on the Occupy movement. (New York Times, “When the Police Go Military” 12/3/11). They are supposed to be sensitive to the civil and human rights of all the people, respect the cultural diversity of their environment, “serve and protect,” not to be trained in “quick shoot reflex” by outfits such as the Firearms Training Systems which trains both the NYPD and the US marines!
Police departments are public institutions subject to the will of local governments, to the will of the public, the people. But only if we act! Where and under what circumstances the police receive their training, are granted “immunity” and what armaments they possess, (paid for by public funds) and what sort of institutional relationships with US military and intelligence agencies (which public documents would make evident) are they engaged in …
These are the kinds of questions and avenues of approach common throughout history in the struggle of citizens against police/military dictatorships. And despite the recent May 17, 2012 issuance of the “DoD Civil Liberties Program,” which defines civil liberties as “fundamental rights and freedoms protected by the Constitution of the United States,” except when “operational requirements” of “an authorized law enforcement, intelligence collection, or counterintelligence activity” dictate otherwise; despite the tightening noose, in the end we must rely on the law, on “the rule of law,” specifically, on the ability (necessity) of reasonable people of good will acquiring sufficient power to draft new and enforceable laws, laws which promote justice, healing, growth, life and peace. And to make them stick!
We claim and hope to be a society of laws, by the people, for all the people. But we are not. Never have been. Nonetheless, we are capable of evolving, of igniting a revolution of values in this country and becoming the land we all aspire to “with justice and freedom for all.” But in order to get there, we will have to overcome the coup of 2012.
Frank Morales / Memorial Day / 2012